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Cite as: [2018] EWHC 1046 (Admin)

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Neutral Citation Number: [2018] EWHC 1046 (Admin)
Case No: CO/4896/2016

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL
4 May 2018

B e f o r e :

MICHAEL FORDHAM QC
(Sitting as a Deputy High Court Judge)

____________________

Between:
R (YASMEEN DIN)
Claimant
- and -

SECRETARY OF STATE FOR
THE HOME DEPARTMENT
Defendant

____________________

Joseph Markus (instructed by Turpin & Miller LLP) for the Claimant
Vinesh L Mandalia (instructed by Government Legal Department) for the Defendant

Hearing dates: 7 March 2018

____________________

HTML VERSION OF JUDGMENT APPROVED
____________________

Crown Copyright ©

    MICHAEL FORDHAM QC :

    Introduction

  1. This claim for judicial review is brought against decisions dated 14 July 2016, 16 December 2016 and 22 September 2017, in which the Secretary of State refused to confirm the claimant's status as a British citizen. The parties agree that I have to determine a central question of fact: whether the claimant was born in Oxford on 26 June 1968, as she claims. They agree that, if she was, she is a British citizen by operation of statute law (section 11(1) of the British Nationality Act 1981, read with section 4 (as enacted) of the British Nationality Act 1948 and section 2(1)(a) (as enacted) of the Immigration Act 1971). They agree that this is an objective question of fact to be determined by the Administrative Court, on all the evidence now before the Court, including any oral evidence. There was no resistance from the Secretary of State to the claimant's application to rely on the latest available documentary evidence, and none by the claimant to the Secretary of State's application to cross-examine the claimant and Mohammed Yusuf who gave evidence in support of her claim. I granted both parties' applications.
  2. This is no conventional judicial review of the Secretary of State's conclusions, on a secondary and supervisory basis, and on the evidence which was before her. The Court's substitutionary function is a familiar one. Back in 1939 the Court of Appeal explained, in the compulsory purchase case of White & Collins [1939] 2 KB 838, that determining whether 23 acres of Highfield House in Ripon were "part of a park" was a question of fact for the Court to answer for itself, on the evidence before the Court. In the present context the Court's substitutionary review is necessitated by Article 6 of Schedule 1 to the Human Rights Act 1998, as explained by Keene LJ for the Court of Appeal in R (Harrison) v Secretary of State for the Home Department [2003] INLR 284 at 34. It is a good working illustration of the procedural adaptability and contextually enhanced level of scrutiny which judicial review can deliver, where necessary in the interests of justice. It is common ground that the burden of proof is on the claimant (1971 Act s.3(8)) and the standard of proof is the balance of probabilities: R (Begum) v Secretary of State for the Home Department [2014] EWHC 2968 (Admin) 20-24. That is the approach which I have taken to the evidence, and to the making of findings.
  3. Secure Background Facts

  4. Having read the documents, heard from the two witnesses and considered all the submissions, I am satisfied that a sound starting point for this case is the following secure framework of background facts.
  5. Khair Din married Razia Begum in Sahiwal, Pakistan on 1 March 1967. They came to the United Kingdom on 25 June 1967. They lived in Oxford, where Razia Begum gave birth to their two daughters: Yasmeen on 26 June 1968 and Nuzma on 2 October 1969. Yasmeen was born in the Churchill Hospital where her hospital 'baby tag' bore the name Yasmeen Din. Her birth certificate recorded her name as Yasmeen and her father as Khair Din.
  6. The family home was in Oxford where they lived with Khair Din's two sons from his previous marriage to Sherifaan Begum. That marriage had ended in divorce recorded on 23 February 1967. Razia Begum had travelled to the United Kingdom in June 1967 (on the face of it as Sherifaan Begum). The boys, Mohammed Yusuf born in Pakistan on 1 October 1955 and Mohammed Younus born in Pakistan on 2 September 1958, had come to the United Kingdom on 10 August 1967. In November 1972 Razia Begum took Yasmeen and Nuzma with her to Pakistan, where they remained.
  7. Mohammed Yusuf was a 12 year-old schoolboy in Oxford in June 1968 when baby Yasmeen was brought home from the Churchill Hospital. They lived in the same family home for the next four and a half years until November 1972, when Yasmeen and her sister Nuzma left with their mother for Pakistan. By then, Mohammed Yusuf was 17.
  8. In June 1979 a girl called Yasmeen (sometimes written as Yasmin) began attending the Government Women's Primary/Middle School Tehsil in Multan, Pakistan. School records show 2 June 1979 as the admission date to the school for the new student whose name is there recorded (in the English translation) as "Yasmin Sultana". The date of birth of Yasmeen Sultana is given as 4 January 1968. Her father is named as Khair Din. It would have been normal for a girl to begin her education aged around 11, and to have obtained an official identity card with a personal identification number (CNIC) at around age 18. The official identity card would later have been used for a national computerised database (known as NADRA) from around 2000.
  9. By around 1987 Yasmeen Sultana received an official identity card, with her CNIC number. There is reference to a NADRA national identity card having been obtained on 11 November 2009. According to a NADRA Family Registration Certificate issued on 19 November 2012, Yasmeen Sultana was issued with a CNIC number which ended in 589-4. Her date of birth was recorded as 4 January 1968. Her father's name was recorded as Khair Din and her mother's name as Razia Begum. A Land Register document for 2011/12 recorded "Yasmeen D/O [daughter of] Khair Din" with a sister "Nazma Bano D/O Khair Din". When Yasmeen Sultana was issued with a Pakistan passport on 21 November 2013, her CNIC number was the 589-4 number, her date of birth was given as 4 January 1968 and her place of birth as Sahiwal.
  10. Khair Din and Razia Begum had three more daughters, all born in Pakistan. The NADRA Family Registration Certificate issued on 19 November 2012 records their names (and dates of birth) as follows: Shahar Bano (1973), Shabnam Chaudhry (17 August 1977), Khalida Parveen (8 February 1979); the three sisters of Yasmeen Sultana (4 January 1968) and Nazma Din (2 October 1969). In the case of all five, the father's name is recorded as Khair Din and the mother as Razia Begum.
  11. Khair Din died on 7 June 1986. The Land Register document of 2011/12 records that Khair Din's inheritance passed to all five daughters (Nuzma Din being recorded as Nazma Bano), and also to Mohammed Yusuf (recorded as Mohammad Yousaf) whose brother Mohammed Younus had by then died.
  12. By March 1987 there had been unsuccessful arrangements by the British Embassy in Islamabad to interview "Nuzma and Yasmeen Din", the "claimed half sisters" of Mohammed Yusuf who was in the UK and had enlisted the help of his MP here. Steps to bring Nuzma and Yasmeen to the UK had begun a few years earlier. The Oxford-born Yasmeen's British birth certificate had been changed (the word on the document is "corrected") on 5 October 1982 to record her mother as having been "Sherifana".
  13. On 8 March 1991 Yasmeen, the daughter of Khair Din, married Mumtaz Ahmed in Pakistan (Vehari district) at a ceremony solemnized by Hafiz Mohammed Abdullah.
  14. Using a Pakistan passport issued to her on 21 November 2013, Yasmeen Sultana made an online application for entry clearance on 29 November 2013 to come to the United Kingdom. That application was granted on 14 January 2014. The claimant travelled to the United Kingdom on 6 February 2014 on that passport and entry clearance.
  15. The claimant from 1979 onwards

  16. I find as facts that the claimant is the person who: (1) was the new pupil whose 1979 school records described her as Yasmeen Sultana; (2) was later issued with the 589-4 CNIC number; (3) married Mumtaz Ahmed on 8 March 1991; (4) was issued with the Pakistan passport on 21 November 2013; (5) was issued with the United Kingdom entry clearance on 14 January 2014; (6) used that passport and entry clearance to travel to the United Kingdom; (7) is described in the NADRA Family Registration Certificate; and (8) is described in the Land Register document. I find the evidence to be clear, consistent and materially complete on these points and the continuity of them. None of this was challenged by the Secretary of State, who indeed places reliance on it.
  17. The nub of the case: what happened pre-1979?

  18. The claimant's case is that she is also the Yasmeen born in Oxford on 26 June 1968 who had left the UK with her mother Razia Begum and sister Nuzma Din in November 1972, albeit that from 1979 was described as Yasmeen Sultana (date of birth 4 January 1968, Sahiwal). The Secretary of State's case is that this post-1979 description, together with other circumstances and features of the case, mean that the claimant cannot establish that she has the Oxford 26 June 1968 birth that she claims. The Secretary of State's suggestion is that the claimant was indeed born on 4 January 1968 in Sahiwal, as the documents after 1979 recorded.
  19. The claimant gave oral evidence and was subjected to a thorough cross-examination by Mr Mandalia on behalf of the Secretary of State. I shall say more about this later (27-30 below). I had the advantage of carefully observing the claimant in her oral evidence, including her responses during that cross-examination, given through an interpreter in Urdu. Mr Mandalia put to the claimant a series of topics, many of which arose out of documents, including her main witness statement. In response to several questions, she accepted that there were mistakes. On certain points, she said "no answer" or "I can't answer". There were other aspects, touching for example on what the family could afford to pursue at times in the past, and marital questions, which she was not willing to discuss in a public courtroom.
  20. A central theme in cross-examination involved putting to the claimant that she was Yasmeen Sultana born in Sahiwal on 4 January 1968, and not Yasmeen Din born in Oxford on 26 June 1968. Mr Mandalia put to the claimant what he said it would mean, if she was truthful to the Pakistan authorities in obtaining the 2013 passport and to the British authorities in obtaining the January 2014 entry clearance. He put to her that, if she had been truthful to those authorities when telling them she was Yasmeen Sultana born in Sahiwal on 4 January 1968, then she must be being untruthful now in claiming to be Yasmeen Din born in Oxford on 26 June 1968. There were other topics. There was a question about whether she had been married and so divorced before marrying Mumtaz Ahmed, and why the marriage certificate to Mumtaz Ahmed recorded an incorrectly young age. Another topic was that her oral evidence was confident that her mother had attended with her and Nuzma at the British Embassy, but that is inconsistent with the letter at the time from the FCO. Another concerned her explanation in oral cross-examination that she wanted to come to the United Kingdom in 2014 for 6 weeks to visit and assist her sister Khalida Parveen in a very difficult pregnancy, whereas her written witness statement (standing as her evidence in chief) described a pre-existing plan to come and then apply for a British passport from the UK.
  21. Mr Mandalia submitted that the claimant had not discharged the burden of proving on the balance of probabilities that she was born on 26 June 1968 as Yasmeen Din in Oxford. Why, he submitted, would Yasmeen Din's name, date of birth and place of birth come to be changed in Pakistan to be incorrect? Why only in the case of Yasmeen and not her sister Nuzma? If someone was filling in a date of birth to fill a gap then why choose so specific a date as 4 January and not, say, 1 January? Surely, he submitted, the "real Yasmeen Din" would have been able to give a clear and consistent account. Surely, the explanation of wanting to come in 2014 for 6 weeks to visit and assist her sister was less plausible than that of a pre-existing plan to come and apply for a British passport. Mr Mandalia finally characterised the DNA evidence in this case as inconclusive and consistent with the claimant being a cousin of Nuzma Din, sharing neither parent.
  22. I have considered all of these features of the case and of the evidence, alongside all of the other features and circumstances, in assessing where the truth lies on the critical issue before me.
  23. Central finding and principal reasoning

  24. I find as a fact that the claimant is, as she claims, the Yasmeen Din recorded as born in Oxford on 26 June 1968. I reach that conclusion on all the evidence in the case. I regard the following features as particularly significant.
  25. First, there are the official records in Pakistan for Yasmeen Sultana. The Secretary of State relies on these documents because of what they show as to name, date of birth and place of birth. But these same official Pakistan records, from which the NADRA family certificate was derived, also clearly record that Yasmeen Sultana's father was Khair Din, and moreover that her mother was Razia Begum. In my judgment, this recorded parenthood is significant. These are not 'self-serving' documents for the claimant, in that they are unhelpful to her so far as date and place of birth are concerned. I find as a fact, based on what I consider to be an overwhelming and unrebutted inference, that the original official Pakistan records, on which the computerised NADRA records are based, recorded Yasmeen Sultana's father as Khair Din and her mother as Razia Begum. No document gives or suggests any other father, or mother, for Yasmeen Sultana.
  26. Secondly, it is known and was not disputed that Razia Begum was in the UK in 1968 and gave birth to Yasmeen Din in Oxford on 26 June 1968. That means of course that Razia Begum could not have given birth to a different daughter (another Yasmeen) in Pakistan, less than 6 months earlier. If Yasmeen Sultana is the daughter of Razia Begum then she cannot have been born on 4 January 1968. If Yasmeen Sultana is the daughter of Razia Begum and born in 1968 she must have been born in the UK.
  27. Thirdly, I find nothing implausible about the name of 11 year-old Yasmeen from Oxford coming to be officially recorded in Pakistan as "Sultana" and not "Din", nor about the date of birth being incorrect and the place of birth being the locality in Pakistan. Nor do I find it implausible that records could contain this kind of error for Yasmeen but not for a younger sister Nuzma. There was no evidence of suggestion that girls born 16 months apart were or would have been officially recorded at the same time and by the same administrative staff in June 1979. There is no implausibility or inconsistency in a daughter's father being Khair Din and her name in Pakistan being recorded as Yasmeen "Sultana". The school records demonstrate this. as the other records show, "Din" was not a name by which all of the five daughters were known. References in the evidence indicate to my satisfaction that "Sultana" can attach to a girl as an honorific name. By June 1979 the Oxford Yasmeen had been in Pakistan for six and a half years, since the age of four. Mohammed Yusuf told me in his evidence, and I accept, that his father Khair Din was not a literate or educated man, and that allowance for local cultural norms is appropriate in approaching dates and places of birth registered in Multan in 1979. Not everything in the Pakistan records can have been correct. There is a problem somewhere, because there cannot have been a Yasmeen born to Razia Begum and Khair Din in Pakistan on 4 January 1968. The question becomes where in the Pakistan records is the inaccuracy? Was Yasmeen Sultana born to a different mother, and perhaps father, on 4 January 1968 in Sahiwal? Or was she born to Razia Begum and Khair Din, but on a different date, and in a different place? I find nothing inherently implausible, in the context and circumstances, about the incorrectness being in the recording of when and where Yasmeen had been born eleven years earlier. What I find much less plausible is that Yasmeen's parents, still alive, were incorrectly recorded in and after 1979.
  28. Fourthly, if the Yasmeen born in Oxford on 26 June 1968 became mis-described in Pakistan as the Yasmeen (Yasmeen Sultana) born in Sahiwal on 4 January 1968, this fits with a number features of the evidence. One I have mentioned already: Yasmeen's officially-recorded parenthood. Another is the name Yasmeen itself. Were there really two Yasmeens, with the same father, born in the same year? What makes most sense is that there was one Yasmeen. Next, there is the absence of any record or reference to what became of Nuzma Din's sister and Razia Begum's daughter, the Yasmeen born in Oxford on 26 June 1968, after the three returned to Pakistan in November 1972. Did she just disappear? No document references her, unless she is Yasmeen Sultana.
  29. Fifthly, I am quite satisfied that both the claimant and Mohammed Yusuf know very well what the truth is, and told me the truth. They know very well whether the claimant is the Yasmeen born in Oxford on 26 June 1968, who lived with the two step-brothers in the family home from June 1968 and with her younger sister from October 1969, until the girls and their mother left for Pakistan at the end of 1972. As I have explained, Mohammed Yusuf was 12 when Yasmeen was born and 17 when she left with her mother and sister. By January 1986 he was running three businesses and employing ten full-time employees in Oxford, and was a magistrate of the Oxford City Bench. At that time he gave a statutory declaration in support of the then application for entry clearance by his half-sisters Nuzma Din and Yasmeen Din to visit. In the trial bundle was a photograph of two parents and two young girls. I asked the claimant, and Mohammed Yusuf, about that photograph. They each told me that the photograph was taken at a studio in Oxford, and shows the claimant and her sister Nuzma, in the arms of their parents Khair Din and Razia Begum. I am satisfied that they were telling me the truth.
  30. Sixthly, there is the DNA evidence from the testing company Cellmark. The reports and correspondence from Cellmark explain that sibling analysis is not as conclusive as parentage analysis given the testing method, and that it is possible that a cousin can be detected as a half sibling. No evidence or submission undermined Mr Markus's summary of the DNA evidence set out in his skeleton argument. It was as follows: (1) the claimant is 43,000 times more likely to be Nuzma Din's full sibling than that they are unrelated, and 97 times more likely to be her full rather than half sibling; (2) Nuzma Din is 26 million times more likely to be Khalida Parveen's full sibling than that they are unrelated, and 1,900 times more likely to be her full rather than half sibling; (3) the claimant has a family relationship with Khalida Parveen but testing was "inconclusive" as to its nature (29 times more likely to be half sibling than unrelated, 12 times more likely to be full sibling than unrelated, 2.4 times more likely to be half rather than full sibling); (4) the claimant is 11 times more likely to be Mohammed Yusuf's half sibling than that they are unrelated. I find that this evidence, which was not disputed by the Secretary of State, supports the claimant's case. Mr Mandalia argues that it is consistent with the claimant being the daughter of Khair Din and a third wife, or being a cousin of Nuzma Din and Mohammed Yusuf with no common parentage. In my judgment, the DNA evidence especially the assessment that the claimant is 97 times more likely to be Nuzma Din's full sibling than her half sibling (recalling that a cousin can sometimes be detected as a half sibling) is a significant objective indicator in the claimant's favour.
  31. Themes in cross-examination of the claimant

  32. It is neither necessary nor appropriate for me to rehearse every topic and theme in Mr Mandalia's cross-examination of the claimant. I have already identified the key themes (17 above) which emerged, and on which Mr Mandalia's closing submissions also focused. I will say more here about these and what I made of them. The key point is that I was satisfied that these and other topics did not, separately or cumulatively, cast the claimant's case on the central issue into material doubt.
  33. A first topic concerned visits to the British Embassy in the 1980s and particularly whether the claimant and Nuzma Din went there unaccompanied on 14 January 1987, which unaccompanied visit is described in a letter from the Embassy dated 30 March 1987. This topic assumed prominence because the claimant's oral evidence was that she was sure she had attended the British Embassy twice: once with both parents before her father's death in June 1986; and later with her mother, sister and a family friend. The claimant's signed and adopted witness statement described a January 1987 unaccompanied visit, to which the March 1987 Embassy letter had also referred. On further questioning, the claimant eventually said that she could not be sure. I bear in mind that this was 31 years ago, when the claimant would have been 18 or 19. I gained the clear impression that aspects of the narrative in her witness statements had been included based on background history and contemporaneous documents, then read through and translated to her, and which she had accepted. On some of those aspects, Mr Mandalia was able to expose a conflict with what the claimant could actually say based on her own experience and memory. I found as a theme that the claimant had frequently relied on others, including male members of the family and friends of the family, in the preparation of documents. I observed the claimant and her reactions. Being cross-examined was, at times, a distinctly uncomfortable experience for her. But I did not conclude that she was lying to me when she told me that she was sure she could remember her mother accompanying her and Nuzma at the British Embassy after her father's death. It was helpful to explore this issue with the claimant from the perspective of credibility, reaction and demeanour. Equally, I am satisfied that it is not necessary, in order to determine the central issues in the present case, for me to make specific findings of fact as to how many Embassy visits there were, on what dates, and which of them did and did not involve parental accompaniment.
  34. A second topic concerned official marriage documents. These recorded the claimant as having been aged 20 when on her case she would have been 22. They also described her as a divorcee, whereas she said in oral evidence that she had not previously been married. These matters were squarely put, and the claimant responded, as follows. This was a marriage ceremony in which male elders had been involved in providing information for the "Nikah Namma" (marriage certificate). The age of 20 will have been their approximation. She had undergone a previous religious ceremony with a man, but there had been no official marriage, because she was never as a bride "sent off". I did not find those answers unsatisfactory. What the claimant meant by "sent off" was not something which was pursued in questioning. Further, I have found and this was not disputed that the claimant was the bride at this wedding, and had been born in 1968 (January or June). In my judgment, the details recorded in the marriage certificate documents are not matters of direct relevance or significant assistance to the central issue in this case.
  35. A third topic concerned the process by which the claimant, knowing her true date and place of birth, had secured the issue from the Pakistan authorities of the 2013 passport and from the UK authorities of the entry clearance for her arrival on 15 January 2014. The thrust of the questions put was that, if the claimant was not in fact born in Sahiwal on 4 January 1968 as recorded in the identity document used for the Pakistan passport, then she must have lied to the Pakistan and British authorities in presenting as such a person. The claimant was questioned about this at length. She was also asked about the difference between a description in her witness statement, of a plan in coming to the UK so as to apply for British citizenship from here, compared with what was said on the entry clearance form about a 6 week visit to a nephew and niece, and what she described in oral evidence about visiting her sister Khalida Parveen at the time of her sister's difficult pregnancy. The claimant gave what I was satisfied was a clear and consistent answer to questions about the description to the authorities of her identity. It was as follows. She had used her official Pakistan identity card the one she had had since she was 18 in order to obtain the Pakistan passport, and she had then used the Pakistan passport to obtain entry clearance. On each occasion she had relied on the help of a male figure to deal with the applications. On neither occasion was she directly interviewed by the authorities and she told no lies to them. I accept that evidence. As to the purpose of the entry clearance, I accept the claimant's evidence that she entered for a period of 6 weeks, and I do not think she fabricated the reference to her sister's pregnancy. She told me when questioned about the detail of the entry clearance form that she thought there were errors, and told me that the witness statement description of her intention at the time was not correct. These points are consistent with the theme I have identified already, of an over-reliance on others in preparing documents. Most importantly, I did not find in this issue as to a plan and 'intention' in coming to the UK a discrepancy of a nature which called into question the claimant's general truthfulness or credibility. It did not undermine my confidence as to where the truth lies on the central issue in the case.
  36. The oral evidence of Mohammed Yusuf

  37. Mr Mandalia cross-examined Mohammed Yusuf and did so in a measured way. Mohammed Yusuf's evidence was that the claimant is the Yasmeen Din born in Oxford on 26 June 1968, with whom he lived in Oxford as a teenager. I found his oral evidence reliable, clear and compelling. I detected no basis for thinking that Mohammed Yusuf had lost touch with family members during their growing up in Pakistan so that there is now some honest mistake in identification. Nor for concluding that there is some family conspiracy, involving him pretending that the claimant is someone who she is not. Indeed, I do not consider that it was put to Mohammed Yusuf that he was mistaken as to identification or being untruthful in his evidence to me about who the claimant is. Mohammed Yusuf told me that the claimant "has hidden nothing", and that there would be no reason or benefit for him as a 62 year old man to come to court and give untruthful evidence: "why would I perjure myself?" He told me the claimant was "the same Yasmeen Din that I have known all my life", and was the girl in the photo taken at the studio in Oxford. I accept that he was telling me the truth.
  38. Mohammed Yusuf also gave me several pieces of important contextual, cultural and historical insight, based on his own knowledge and experience, which I accepted and which illuminated aspects of the case. Some of these I have mentioned already. Further examples were: that a wedding like the claimant's would be arranged by the elders getting together, and that their recording an approximate age would not be unusual; and that dates of birth were often not reliably known and recorded by families like theirs (as he put it: "it took me many years to find out my own").
  39. Conclusion

  40. For the reasons I have given, and applying the approach I identified at the outset, I am satisfied that the claimant was born in Oxford on 26 June 1968 to the parents Khair Din and Razia Begum. The claim succeeds. I invite the parties to submit the terms of a suitable declaration together with their consequential submissions.


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